Policy Arguments before Courts: Identifying and Evaluating Consequence-Based Judicial Reasoning

This paper is a modest contribution to a long lasting discussion in legal theory and touches on two broad and related questions: what is and what ought to be the role of consequence-based arguments in legal reasoning. Although putting too much stress on the is-ought distinction might sound old-fashioned to some philosophers, in the following my argument will be presented in two parts: is and ought. Starting with the is question, first I define what consequence-based arguments are and discuss their role in the canon of acceptable arguments of various legal cultures. Basically, this is an exercise in comparative law or legal mapping, although a radically incomplete one. I shall also briefly discuss whether we can observe convergence in this respect. In the ought part, I enter the normative discourse by addressing some philosophical, jurisprudential and pragmatic arguments for and against consequence-based legal reasoning.

As legal arguments based on economic theory are a subset of consequence-based arguments, the insights about consequence-based reasoning are also relevant for any discussion on the use of economic arguments in legal reasoning.